Ford’s Bill 5 and Carney’s Bill C-5, two peas in a pod?

There are deeply worrying features for the environment, Indigenous reconciliation, and indeed democracy in the Building Canada Act that the federal government wants to enact in its new Bill C-5.

Portrait of King Henry VIII, after Hans Holbein the Younger, in the Royal Collection, Windsor Castle. Read on to discover what “Henry VIII” clauses are and why we should be concerned about their various incarnations in the federal government’s just-introduced Bill C-5, the One Canadian Economy Act.

Overview

Last Friday, we alerted readers to serious concerns about the Ontario statute that has just become law (known as Bill 5 in its pre-enactment phase, the act is called the Protect Ontario by Unleashing our Economy Act)). Later that same day, Mark Carney’s government introduced its own new bill, designated as Bill C-5 and bearing the short title One Canadian Economy Act. Bill C-5 legislates two new statutes, one to be called the Free Trade and Labour Mobility in Canada Act and the other the Building Canada Act.

Our focus today is Bill C-5’s Building Canada Act (BCA). Its stated purpose is to advance “projects ….in the national interest … through an accelerated process that enhances regulatory certainty and investor confidence.” The purpose includes getting these national interest projects up and running “while protecting the environment and respecting the rights of Indigenous peoples.”

All sounds great, right? Not so fast. The goals are, but the methods Bill C-5 wants to use to accomplish this purpose are as problematic as Ontario’s Bill 5 that has generated such opposition. Indeed, in several respects, Bill C-5 is even more worrisome than Bill 5. The goal of today’s post is to highlight two major problematic features in order to encourage readers to pay attention as this goes through Parliament.

For those with the time and patience to read detailed legal briefs, we would recommend the excellent Ecojustice analysis of Bill C-5 here. The Ecojustice lawyers concluded that the Building Canada Act portion of Bill C-5 “continues a disturbing trend of eroding democracy and parliamentary government.” We will focus on two issues of particular concern: the massive overriding of legislative power by executive power, often referred to as Henry VIII clauses; and the failure to clearly respect Indigenous rights though the bill tries to make it seem otherwise.

But first, let us acknowledge that we are in the honeymoon period of the Carney government and many will be reluctant to critique it – in part because it’s early days, in part because we understand the enormous and multiple challenges, and in part because we so want this government to succeed in meeting those challenges. But, in the end, we will get the government we demand, and we all must ask: how much democracy are we willing to cede for speed?

King Henry VIII … and King Mark?

Now to the first major concern, which is that the BCA contains three kinds of provisions that are either versions of or cousins of what are known as “Henry VIII clauses.” On its website, the UK Parliament helpfully defines these kind of statutory clauses and expresses why they are problematic:

‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation [ed.: versus normally only Parliament can amend or repeal any part of its own statutes], which is subject to varying degrees of parliamentary scrutiny.

The Lords Delegated Powers and Regulatory Reform Committee pays particular attention to any proposal in a bill to use a Henry VIII clause because of the way it shifts power to the executive.

The expression is a reference to King Henry VIII's supposed preference for legislating directly by proclamation rather than through Parliament.

Putting aside questions of constitutionality, as the UK Parliament makes clear, the central issue is the weakening of democracy: does the bill create “kingly powers”?

Here are the Henry VIII or Henry VIII-like clauses in the BCA, each somewhat different from the other:

1. First of all, there is a classic Henry VIII clause. Section 23 of the BCA allows the Governor in Council (i.e., the Cabinet) to make regulations that “exempt[] one or more national interest projects from the application of any provision of this Act [i.e. of the BCA itself] [and] … vary[] the application of any provision of this Act.” The upshot is that Cabinet can re-write the entire BCA as it wishes. Theoretically, the Statutory Instruments Act, intended to ensure that any rules or changes made by the government conform to the will of parliament, would apply but the way the bill is written it’s not clear that there’d in fact be any constraint on the executive.

2. Next we have a kind of Henry VIII clause on steroids: section 22 gives licence to the government to modify without constraint any other federal statute (there are many hundreds) or federal regulations (thousands) that may be exempted or varied by Cabinet regulations.

3. Now we come to a Henry VIII cousin special to the BCA. Under the BCA, a Cabinet minister may on their own issue an order to write a national project into a schedule of the BCA – making it part of the law – and then go on to issue a document to authorize the project to go ahead subject to either no conditions or any conditions the minister sees fit. This authorization can be given whether or not permitting the project would run afoul of any one or more of 13 statutes (and 7 sets of regulations under some of these statues) already in existence and listed in an annex to the BCA – statutes such as the [Environmental] Impact Assessment Act, the Species at Risk Act, the Fisheries Act, and the Indian Act. The method used by the BCA to allow what would otherwise be government breaches of existing law is to “deem” (a legal way of saying “treat as if” and, in essence, “pretend”) that everything the minister does fulfills the standards set in the other statutes even when those standards would actually be violated were they to apply. Here we have an additional problem: the BCA declares that the Statutory Instruments Act does not apply to these project-scheduling executive orders and to these conditions documents. Is this an attempt to exclude Parliament’s Committee for the Scrutiny of Regulations? If so, the government may have a fight on its hands as that committee’s work is governed not only by the Statutory Instruments Act but also by the rules of procedure of both chambers of Parliament.

Ecojustice concludes the following with respect to this constellation of Henry VIII clauses:

[W]e are not aware of a similarly expansive power in the history of modern Canadian federal environmental legislation. Nor has the Prime Minister or anyone in his government explained why such a power is necessary.

Silence on “free, prior and informed consent” – just as with Ontario’s Bill 5

The second major concern is with respect to the constitutional and international-law rights of Indigenous Peoples. Readers may recall that this is a central concern with respect as well to the Ontario Bill 5 (see at the end of last Friday’s post an explanatory note on why the references to consultation of Indigenous peoples in the Ontario bill are not reassuring). Canada’s Parliament has brought the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into Canadian federal law by way of the 2021 UNDRIP Act, which provides amongst other things that the Government of Canada must take all measures necessary to ensure the laws of Canada are consistent with the Declaration. More than half a dozen provisions of UNDRIP mandate “free, prior and informed consent” of Indigenous peoples. The two articles of UNDRIP of most immediate relevance to the BCA are below (italics are used for emphasis):

Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 32(2) … States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

The Speech from the Throne a little more than a week ago had King Charles saying the following words – words penned for him by the Liberal government:

The Government will be a reliable partner to Indigenous Peoples, upholding its fundamental commitment to advancing reconciliation. Central to this commitment is the creation of long-term wealth and prosperity with Indigenous Peoples. .... As Canada moves forward with nation-building projects, the Government will always be firmly guided by the principle of free, prior, and informed consent.

Perhaps not so “firmly guided” after all, it turns out – less than two weeks later.

In Canada’s statutes, preambles help interpret what are called the “operative” parts (that start with section 1) but they do not in and of themselves create statutory obligations.

Consider now the preamble to the BCA:

Whereas the Government of Canada is committed to working in partnership with provincial, territorial and Indigenous governments and Indigenous peoples;

Whereas the Government of Canada is committed to respecting the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 and the rights set out in the United Nations Declaration on the Rights of Indigenous Peoples…

Then consider the most relevant section of the operative part:

Power of Governor in Council

5... Consultation

(7) Before recommending that an order be made under any of subsections (1), (3) and (4), the Minister must consult with any other federal minister and any provincial or territorial government that the Minister considers appropriate and with Indigenous peoples whose rights recognized and affirmed by section 35 of the Constitution Act, 20 1982 may be adversely affected by the carrying out of the project to which the order relates .

What happened between the Throne Speech and the BCA? Does the government actually think that placement of the general UNDRIP reference in the preamble will be sufficient to read section 5 as including an understanding of “consult” that includes seeking to obtain “free, prior and informed consent” – when it could not bring itself to use that specific phrase even in the preamble and despite the requirements of the UNDRIP Act? Or is it playing some sort of legal game – that takes us back to every form of roadblock successive Canadian governments and their lawyers have thrown up against Indigenous rights since Canada was created? It is a travesty that the very standard set out in the Throne Speech was omitted from the very bill that most directly affects Indigenous Peoples.

Surely, we do not want – nor should the government be forcing Indigenous communities – to take a litigation route in order to have the consultation processes in the BCA respect both the UNDRIP Act and the solemn promise the government made, spoken through the King, a very short while ago. That not only would be a travesty of justice but also would, ironically, slow down the “accelerated” process the BCA aims for.